State Tax Commission of Missouri
CROWN DIVERSIFIED INDUSTRIES, )
v. ) Appeal Number 09-10369
JAKE ZIMMERMAN, ASSESSOR, )
ST. LOUIS COUNTY, MISSOURI, )
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE. Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization and establish the fair market value that should have been placed on the property.
True value in money for the subject property for tax years 2009 and 2010 is set at $2,850,000, commercial assessed value of $912,000.
Complainant appeared by Counsel Richard D. Dvorak, Overland Park, Kansas.
Respondent appeared by County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which reduced the valuation of the subject property. The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009. The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
1. Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.
2. Evidentiary Hearing. The Evidentiary Hearing was held on January 24, 2013, at the St. Louis County Government Building, Clayton, Missouri. Transcript filed April 11, 2013. Hearing Officer informed on 4/15/13 that Respondent did not wish to brief the case.
4. Description of Subject Property. The subject property consists of an 8.23 acres tract of land. It is improved by a one-building, multi-tenant retail strip center facility containing 80,160 square feet of gross leasable area. See Exhibit E for a more detailed description of the property under appeal.
5. Highest and Best Use As Improved. The facility is not modern in design and not functional for its original intended use as a big box store. The building’s original intended use was not as a divided multi-tenant facility. The highest and best use as improved is redevelopment to a modern commercial use. The building is a retail strip center facility that possesses average appeal to prospective tenants. The original design of the subject was for a single-tenant home improvement user. The building was subsequently converted to a multi-tenant use. As of the valuation date, there were two tenants which occupy 58,529 square feet. The remaining 21,631 square feet were not leased on the valuation date and had been vacant for some years. The subject suffers from functional obsolescence due to the converted use from a single-tenant big box retail building to a multi-tenant building, with unusually large depth of tenant space in relation to width, as well as poor access to vacant space on south portion of the building.
6. Ownership and Subject Ground Lease. Complainant owns the subject land. First Berkshire Business Trust currently owns the building improvements and has a ground lease with an initial term expiration of November 30, 2012, same date as the initial term expirations for the subject’s two tenants. The ground lease has three, 5-year options. Upon expiration of the ground lease, the building improvements revert to the fee ground owner, i.e. Crown Diversified Industries Corp.
7. Assessment. The Assessor appraised the property at $6,008,700, an assessed commercial value of $1,922,780. The Board of Equalization reduced the value to $5,000,000, an assessed value of $1,600,000.
Best Buy Lease Agreement
Dollar Tree Lease
Builder’s Square Lease
Appraisal – Troy Smith
Correction to Page 16
Diagram of Tenants’ Areas of Subject Building
9. Objections to Exhibits. Objections were made to Exhibits A and E. Objections were overruled and Motion to Strike Exhibits A and E was denied in Order, dated 9/5/12. Said Order is incorporated by reference into this Decision as if set out in its entirety herein.
10. No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.
11. Approaches to Value. Complainant’s Appraiser considered the three recognized approaches to value. He elected to not develop a cost approach, but did develop both the sales comparison and income approaches.
a. Cost Approach Not Applicable. The subject’s age makes it difficult to accurately form an opinion of depreciation and tends to make the Cost Approach unreliable. Investors do not typically rely on the Cost Approach when purchasing a property such as the subject. Accordingly, it was not necessary that the Cost Approach be utilized to develop an opinion of market value.
b. Sales Comparison Approach Not Persuasive. The concluded value under the sales comparison approach was $3,050,000. The appraiser did not place any actual reliance on this approach in his final conclusion of value. The approach standing on its own and the value concluded there under by the appraiser constituted substantial and persuasive evidence to rebut the presumption of correct assessment and establish the value proposed. However, this approach to value is not persuasive in this instance to establish value when weighed against the conclusion of value derived from the income approach.
c. Income Approach Persuasive. The conclusion of value presented under the income approach was $2,850,000. This approach, and the determination of value made there under, was persuasive to arrive at the fair market value of the subject property as of 1/1/09.
12. Presumption of Correct Assessment Rebutted. Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $2,850,000, as proposed. See, Presumption In Appeal and Complainant Proves Value, infra. The commercial assessed value of the Complainant’s property is $912,000.
13. Respondent’s Evidence. Respondent offered into evidence the following: Exhibit1 – Appraisal Report of Boris Frumson; Exhibit 2 – Written Direct Testimony of Mr. Frumson; and Exhibit 3 – Rebuttal Exhibit. During the course of the cross-examination of Mr. Frumson, Counsel for Complainant objected to Exhibits 1 and 2 and moved that they be stricken. Objection was sustained and motion was granted. See, Objection to and Exclusion of Exhibits 1 & 2, infra. Exhibit 3 was not offered into evidence.
CONCLUSIONS OF LAW AND DECISION
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.
Presumption In Appeal
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. This presumption is a rebuttable rather than a conclusive presumption. It places the burden of going forward with some substantial evidence on the taxpayer – Complainant. When some substantial evidence is produced by the Complainant, “however slight,” the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption. The presumption is not evidence of value.
The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.
Upon presentation of the Complainants’ evidence the presumption in this appeal disappeared. The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error. The appraisal established what the fair market value that should have been placed on the property. No evidence was presented that rebutted the conclusion of value in Complainants’ appraisal.
Objection to and Exclusion of Exhibits 1 & 2
During the cross-examination of Respondent’s expert witness, Mr. Frumson asserted that in preparing his appraisal report he did not have knowledge of the existence of the ground lease. Based on this testimony, he could not have had any knowledge that the two leases on the subject building reached the end of their respective terms at the same date as the end of the existing term of the ground lease when he was preparing his appraisal. The appraisal was prepared on the basis of the assumption of Mr. Frumson that, “The leased fee estate is marketable and that the property is free and clear of all liens, encumbrances, easements, and restrictions which might affect value, unless otherwise note.” Therefore, the appraiser could not and did not give any consideration to this factor or any potential risk to a perspective purchaser which this factor might entail in his appraisal of the property.
Subsequent testimony by the witness established that in May or June of 2012, he did become aware of the existence of the ground lease. However, the Frumson appraisal concluded a value without having given consideration to the risk involved with the subject property due to the existence of the ground lease and the two existing leases and there simultaneous termination dates. The appraiser, once he had knowledge of the ground lease, elected to not perform any recalculations to account for the existing risk involved with the subject property. His testimony was concluded with his admission that the opinion of value tendered in his appraisal was inaccurate due to the failure to account for the risk factors inherent in the economic circumstances of the subject property.
Accordingly, the Hearing Officer was presented with the most unusual situation of an appraiser having just admitted that certain risk factors that existed with the property under appeal were not considered or taken into account in his appraisal. Therefore, the opinion of value which the appraiser offered in support of the assessor’s original value was in error. There existed no basis upon which it could be established the extent of the error in value. There was no foundation to permit the appraiser to redo his appraisal. The simple fact was that the Frumson appraisal did not appraise the subject property under the economic conditions applicable to the property as it existed as of 1/1/09, for which any knowledgeable well-informed prospective buyer would have evaluated the property. Based on the foregoing, the motion of Counsel for Complainant for exclusion of the appraisal and written direct testimony from the evidentiary record was sustained.
Ruling sustaining objection of Complainant and granting of motion to exclude made at the evidentiary hearing is hereby affirmed.
Standard for Valuation
Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so. True value in money is defined in terms of value in exchange and not value in use. It is the fair market value of the subject property on the valuation date. Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
1. Buyer and seller are typically motivated.
2. Both parties are well informed and well advised, and both acting in what they consider their own best interests.
3. A reasonable time is allowed for exposure in the open market.
4. Payment is made in cash or its equivalent.
5. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
Investigation by Hearing Officer
In order to investigate appeals filed with the Commission, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. The Hearing Officer, during the evidentiary hearing, made inquiry of Complainant appraiser.
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part. The Hearing Officer is persuaded that the valuation presented in the Smith appraisal is based upon appropriate and sound appraisal practice and therefore constitutes substantial and persuasive evidence to establish the value concluded of $2,850,000.
Methods of Valuation
Proper methods of valuation and assessment of property are delegated to the Commission. It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case. Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value. Mr. Smith appraised the property developing both the sales comparison and income approaches to value. He concluded value relying on his income approach. The methodologies utilized were appropriate for the appraisal problem presented in the present appeal. The income approach was the appropriate method for arriving at an estimate of value for the property under appeal.
Opinion Testimony by Experts
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.
The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.
The data upon which Mr. Smith based his opinion of value were of the type that would be reasonably relied upon by appraisers in forming opinions upon the subject of the fair market value of the subject property as of 1/1/09. Furthermore, the supporting data was otherwise reliable for the use of the appraiser.
Complainant Proves Value
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2009. There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof. The taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.
The Complainant’s appraisal evidence meets the required evidentiary standard to rebut the presumption of correct assessment by the Board and to establish the true value in money as of 1/1/09 of the subject property. Therefore, Complainant has establish a fair market value of $2,850,000 for the property under appeal and the assessment of same must be made based on that value. See, FINDINGS OF FACT 5, 6, 11 & 12, supra.
The assessed valuation for the subject property as determined by the Board of Equalization for St. Louis County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax years 2009 and 2010 is set at $912,000.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED June 25, 2013.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 25th day of June, 2013, to: Richard Dvorak, 7111 West 98th Terrace, Suite 140, Overland Park, KS 66212, Attorney for Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Mark Devore, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
Contact Information for State Tax Commission:
Missouri State Tax Commission
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102-0146
 Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)
Substantial and persuasive evidence is not an extremely high standard of evidentiary proof. It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt). It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board. The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.
“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.” Black’s Law Dictionary, Seventh Edition, p. 580.
The word scintilla is defined as “1. a spark, 2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition. Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.” There must be more than a spark or trace for evidence to have attained the standard of substantial. Once there is something more than a spark or trace the evidence has reached the level of substantial. Substantial evidence and the term preponderance of the evidence are essentially the same. “Preponderance of the evidence. The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s at 1201. Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion. Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.
 Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
 Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.
 St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
 St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
 St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
 Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
 See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003). Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).